Patna High Court - Orders
The State Of Bihar & Ors vs Jitendra Nath Verma & Anr on 7 March, 2011
Author: S.K.Katriar
Bench: S.K.Katriar
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.214 of 2010
1.The State of Bihar
2.The Principal Secretary, Department of Social Welfare,
Government of Bihar, Patna
3. Director, Directorate of ICDS, Department of Social Welfare,
Government of Bihar, Patna
4. Child Development Project Officer, Bidupur, District Vaishali
.........Appellants
Versus
1. Jitendra Nath Verma, son of Late Kapil Deo Narayan, resident of
Nawin Cinema Road, Hajipur, P.S. Hajipur, District Vaishali.
2. The Managing Director, Bihar State Handloom, Powerloom and
Handicraft Development Corporation Ltd., Patna
...........Respondents
5 7.3.2011Heard Mr. Ashok Kumar Keshri, learned A.A.G.11 for the appellants, Mr. Dhirendra Kumar Jha for respondent no.1 and Mr. Uma Kant Singh for respondent no.2. The State of Bihar has preferred this appeal under Clause10 of the Letters Patent of the High Court of Judicature at Patna, and raises a grievance with respect to the order dated 17.8.2009, passed by a learned Single Judge of this Court, whereby C.W.J.C.No.13398 of 2008 (Jitendra Nath Verma Vs The State of Bihar) has been allowed, and it has been directed that the writ petitioner shall superannuate on completion of 60 years of age.
2. A brief statement of facts essential for the disposal of the instant appeal may be indicated. The Bihar State Handloom and Handicrafts Development Corporation 2 (hereinafter referred to as „the Corporation‟) is a public sector Undertaking of the Government of Bihar. By order dated 30.7.1995, respondent no.1 (the writ petitioner) was appointed in the services of the Corporation as a Store Keeper w.e.f. 12.8.1975. At the first meeting of the Board of Directors of the Corporation held on 25.7.1974, it had passed the following resolution:
"Resolved that until the Corporation frames its own Rules it may adopt the Rules and Regulations of the Government of Bihar".
In view of the resolution of the Board of Directors, the employees continued to be governed by the Rules and Regulations including Bihar Service Code framed by the Government of Bihar.
2.1 With the passage of time, the Corporation fell in difficulties, and filed an application for voluntary liquidation before the learned Company Judge of the Patna High Court, and is pending consideration. The State Government decided to accommodate the employees of the Corporation so that they are not rendered jobless. In that view of the matter, respondent no.1 was sent on deputation in the Child Development Project office of the State of 3 Bihar, and was posted in the district of Vaishali. In the meantime, the State of Bihar had raised the age of superannuation of its employees from 58 years to 60 years by notification dated 24.3.2005. Suitable amendment was made in Rule 73 of the Bihar Service Code raising the age of superannuation of its employees. In view of the aforesaid resolution of the Board of Directors of 25.7.1974, the employees of the Corporation expected that they shall be allowed to continue up to the age of 60 years. Respondent no.1 claimed to be in particularly better position because he was already on deputation to the State of Bihar. Finding no response from the State of Bihar, respondent no.1 preferred the writ petition which has been allowed by order of the learned Single Judge. Hence this appeal at the instance of the State of Bihar.
3. While assailing the validity of the order of learned Single Judge, the learned Addl. Advocate General submits that the action of the Board of Directors of the Corporation adopting the Rules and Regulations of the State of Bihar was its unilateral act and cannot bind the State of Bihar. Therefore, the State of Bihar cannot be forced to allow respondent no.1 to continue till the age of 60 years. The 4 aforesaid notification dated 24.3.2005 was confined to the employees of the State of Bihar. By deputation to the State of Bihar, respondent no.1 does not become its employee. He relies on the order dated 7.9.2009, passed by a Division Bench of this Court in L.P.A. No.492 of 2008 (Md. Nijam Vs State of Bihar), and the analogous appeal, and also the judgment of a Division Bench of this Court in the Case of The State of Bihar Vs Braj Mohan Prasad & Ors, reported in 2010(1) P.L.J.R. 707.
4. Learned counsel for respondent no.1 has supported the order of the learned Single Judge. Learned counsel for respondent no.2 submits that voluntary winding-up petition of the Company is pending in this case. He also fairly owns the aforesaid resolution of the Board of Directors passed on 25.7.1974.
5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the Board of Directors of the Corporation had adopted the Rules and Regulations of the Government of Bihar to govern its affairs till such time it frames its Rules. Such Rules and Regulations including the Bihar Service Code have continued to govern 5 the affairs of the Corporation. The Bihar Service Code prescribes the age of superannuation of the employees of the State of Bihar. Therefore, it goes without saying that with the issuance of notification of Government of Bihar dated 24.3.2005, enhancing the age of superannuation of its own employees with corresponding amendment in Rule 73 of the Bihar Service Code, the age of superannuation of the employees of the Corporation automatically stood enhanced.
6. We must consider the submission advanced by learned Addl. Advocate General for the appellants to the effect that unilateral act of the Corporation, adopting the rules and regulations of the State of Bihar, cannot fasten any liability on the State of Bihar. The contention of the State is ingenious, but does not deserve a deeper scrutiny. As is evident, the resolution of Board of Directors was passed way back on 25.7.1974, to the full knowledge of the State of Bihar and no effort was made to alter the position. Secondly, the Corporation is an instrumentality of the State Government and, in spite of the autonomy granted to it, continues to be in the control of the State Government. Thirdly, after the Corporation filed an application for 6 voluntary winding-up in this court, the State Government took a policy decision to take on deputation the employees of the Corporation so that they are not rendered unemployed. In implementation of the same, respondent no.1 was taken by the State of Bihar on deputation in the Child Development Project office in the district of Vaishali, where he had continued to function till he reached the age of 60 years in May, 2010. The contention is rejected.
7. We must deal with the two decisions of this Court relied upon by learned Addl. Advocate General. Those appeals also dealt with identical issues with respect to enhancement of age of superannuation of other public sector undertakings of the Bihar Government. However, in none of the two decisions we notice that those Corporations had adopted the rules and regulations of the Bihar Government. In such circumstances, those decisions are of not much avail to the appellants. However, the decision dated 7.9.2009, passed in L.P.A.No.492 of 2008, and the analogous appeal, must be specifically considered. In our view, the same operates against the appellants inasmuch as those employees were taken on deputation by the State Government and, on the date of the decision, were left with 7 only 10 days to complete 60 years of age. In that view of the matter, the Division Bench observed that they should be allowed to continue till completion of 60 years of age with consequential benefits. This decision rather supports the case of respondent no.1.
8. In that view of the matter, we do not find any substance in this appeal, and it is accordingly dismissed. Respondent no.1 shall be entitled to his salary till May 2010, and shall also be entitled to computation and payment of post-retirement benefits accordingly. In the circumstances of the case, there shall be no order as to costs.
(S.K.Katriar,J) (S.P.Singh,J) KHAN